Case 1:15-cv-00446-RP Document 82 Filed 10/16/15 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
MARIA ISABEL PERALES SERNA, ET AL.,
Plaintiffs,
V.
TEXAS DEPARTMENT OF STATE
HEALTH SERVICES, VITAL STATISTICS
UNIT, ET AL.,
Defendants.

1-15-CV-446 RP

ORDER
Before the Court are Plaintiffs Emergency Application for Temporary Injunction, filed
August 21, 2015 (Clerks Dkt. #25), the responsive pleadings thereto, as well as Amicus briefs filed
both in support of, and opposition to, Plaintiffs application. The Court conducted a hearing on the
application on October 2, 2015. Having considered the application, response, record in the case,
and the applicable law, the Court is of the opinion that Plaintiffs application for a preliminary
injunction should be denied. See FED. R. CIV. P. 65(b).
I. BACKGROUND
Plaintiffs in this action are La Union del Pueblo Entero, Inc. (LUPE), which describes itself
as a non-profit organization dedicated to promoting the health, education, labor, and civil rights
of indigent farmworkers and other low-wage workers in the Rio Grande Valley, and undocumented
person Maria Isabel Perales Serna, and other similarly situated parents, who bring this action on
behalf of themselves and minor children. Plaintiffs assert claims against defendants the Texas
Department of State Health Services, Vital Statistics Unit (DSHS), as well as DSHS
Commissioner Kirk Cole and Unit Chief Geraldine Harris in their official capacities challenging
recent policy changes adopted by DSHS.

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At issue in this case is the claim by Plaintiffs that persons without legal immigration status
in the United States are effectively denied the ability to obtain a birth certificate for children born
in Texas, who are thus citizens of the United States. Plaintiffs contend the effective bar creates
numerous issues in obtaining the rights and benefits which inure to citizens of the United States,
including enrollment in schools and social welfare programs, as well as other services such as
baptism and day care services. They maintain access to those benefits, services and programs
is contingent on presentation of a birth certificate, and thus the inability to obtain a birth certificate
effectively denies access to children born in Texas to persons without legal immigration status.
DSHS is the Texas state agency statutorily empowered to administer the registration of
vital statistics. TEX. HEALTH & SAFETY CODE ANN. 191.002(a). Subject to DSHS rules, the state
registrar is required to supply to a properly qualified applicant, on request, a certified copy of a
record, or part of a record, of a birth registered with DSHS. Id. 191.051(a). A properly qualified
applicant is defined as:
The registrant, or immediate family member either by blood, marriage or adoption,
his or her guardian, or his or her legal agent or representative. Local, state and
federal law enforcement or governmental agencies and other persons may be
designated as properly qualified applicants by demonstrating a direct and tangible
interest in the record when the information in the record is necessary to implement
a statutory provision or to protect a personal legal property right.
25 TEX. ADMIN. CODE 181.1(21). The governing regulation (Section 181") also mandates, to
meet the requirement that an applicant requesting a record be properly qualified, the applicant
must present proof of identity acceptable to the State Registrar. Id. 181.28(i)(2).1
Section 181 sets forth an extensive list of acceptable forms of identification divided into
three categories primary, secondary and supporting. Primary identification documents are a
variety of documents issued by the federal or state governments, including a drivers license,

Prior to 2013, the forms of acceptable identification were contained not in the Texas Administrative Code,
but in the Vital Statistics Unit's Local Registrar Handbook. (Def. Resp. Decl. of Farinelli 7).

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military id, passport and permanent resident card. The documents must be current and valid. Id.
181.28(i)(10). Section 181 lists the following acceptable forms of secondary identification:
(I) Current student identification;
(ii) Any Primary Identification that is expired;
(iii) Signed Social Security card, or Numident;
(iv) DD Form 214 Certificate of Release;
(v) Medicaid card;
(vi) Medicare card;
(vii) Veterans Affairs card;
(viii) Medical insurance card;
(ix) Foreign Passport accompanied by a Visa issued by the United States
Department of State;
(x) Foreign Passport in accordance with the United States Department of State,
Visa Waiver Program;
(xi) Certified birth certificate from the Department of State (FS-240, DS-1350 or
FS-545);
(xii) Private Company Employment Identification card;
(xiii) Form I-94 - accompanied by the applicant's Visa or Passport;
(xiv) Mexican voter registration card; or
(xv) Foreign Identification with identifiable photo of applicant.
Id. 181.28(i)(11)(D).

Supporting identification is described simply as [o]ther records or

documents that verify the applicant's identity and directs examining or supervisory personnel
to consult DSHS policies to determine whether the supporting identification document is
acceptable. Id. 181.28(i)(12).2
A single primary identification document is sufficient to establish identity.

Id.

181.28(i)(10). Absent primary identification, to satisfy the identification requirement, an applicant

must submit two forms of secondary identification of different types, or one form of secondary
identification and two forms of acceptable supporting identification of different types. Id.
181.28(i)(11)(B).
Persons without legal immigration status almost universally lack any primary identification

The DSHS Local Registrar Handbook, revised in April 2015, provides examples including recent utility bill,
school transcripts, bank account statements, foreign birth certificates and marriage licenses. (Def. Supp. Decl. of Kerr
Ex. 5-1 at 43).

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documents. Plaintiffs allege many persons without legal immigration status do not have foreign
identity documents which would qualify as secondary identification for a variety of reasons. For
example, many left their native country as minors, and thus never obtained a drivers license or
electoral identity card. They further allege many such persons were stripped of, or have lost,
identification cards during their journey to the United States. (2nd Am. Compl 48-53).
According to Plaintiffs, for a number of years, registrars accepted official photo
identification cards, issued by a local consulate, as satisfying the identification requirement for a
properly qualified applicant.3 (Id. 56). Plaintiffs describe the consular identification documents
as official photo identification cards provided by the foreign government, by way of its consulate,
to its citizens residing in the United States. The documents can be obtained by presentation of
proof of citizenship and identity to the consulate. (Id. 57).
Plaintiffs allege Defendants began rejecting Mexican matriculas as a policy change a few
years ago. They contend the change in policy was only sporadically enforced until approximately
2013, when it began to be ever more strictly enforced.

According to Plaintiffs, consular

identification from other nations is now rejected as well. (Id. 58-59).

Plaintiffs assert six causes of action. By way of the first four, they contend the rights of the
Plaintiff children and Plaintiff parents to equal protection and due process are being denied as a
result of Defendants interpretation and enforcement of Section 181 which effectively denies the
issuance of birth certificates for the Plaintiff children. (Id. 124-90). By way of the fifth, Plaintiffs
contend Defendants interpretation and enforcement of Section 181 violates the Supremacy
Clause because matters of immigration policy are the exclusive function of the federal
government. (Id. 191-205). By way of the sixth, they contend the Defendants change in policy
regarding interpretation and enforcement of Section 181 constitutes a de facto change to
3

The Mexican version of the consular identification document is known as the "matricula.

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published regulations without benefit of any of the procedures required under Texas
Administrative Procedures Act and thus the de facto regulations are void under state law. (Id.
206-18).
Plaintiffs now seek a preliminary injunction requiring Defendants to determine at least two
forms of identification [that are] reasonably and actually accessible to undocumented immigrant
parents of Texas-born children that satisfy the identification requirement for a properly qualified
applicant to obtain the birth certificate of a child born in Texas. The parties have filed responsive
pleadings and supporting affidavit testimony. The Court conducted a hearing on October 2, 2015
and the matter is now ripe for review.
II. STANDARD OF REVIEW
A preliminary injunction is an extraordinary remedy and the decision to grant a preliminary
injunction is to be treated as the exception rather than the rule. Valley v. Rapides Parish Sch. Bd.,
118 F.3d 1047, 1050 (5th Cir. 1997). The party seeking a preliminary injunction may be granted
relief only if the moving party establishes: (1) a substantial likelihood of success on the merits; (2)
a substantial threat that failure to grant the injunction will result in irreparable injury; (3) that the
threatened injury out-weighs any damage that the injunction may cause the opposing party; and
(4) that the injunction will not disserve the public interest. See Hoover v. Morales, 146 F.3d 304,
307 (5th Cir.1998); Wenner v. Texas Lottery Comm'n, 123 F.3d 321, 325 (5th Cir. 1997);
Cherokee Pump & Equip. Inc. v. Aurora Pump, 38 F.3d 246, 249 (5th Cir. 1994). The party
seeking a preliminary injunction must clearly carry the burden of persuasion on all four
requirements to merit relief. Mississippi Power & Light Co., 760 F.2d 618, 621 (5th Cir. 1985).
III. ANALYSIS
A. Substantial Threat of Irreparable Injury
In seeking a preliminary injunction Plaintiffs contend they face irreparable injury as a result
5

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of Defendants conduct. Plaintiffs in this action fall into three categories. One, the non-profit
organization LUPE. Two, the Plaintiff parents who are parents to Texas born children. And,
three, the Plaintiff children who were born in Texas to undocumented parents. Based on the
focus of the arguments raised at the hearing, the Court will turn to the third category first.4
Plaintiffs maintain the inability to obtain birth certificates for children born in Texas deprives
the Plaintiff children of the rights and benefits to which they are entitled as United States citizens.
The Supreme Court has stated that the loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373
(1976); see also Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009) (loss
of First Amendment freedoms for even minimal periods of time constitutes irreparable injury
justifying the grant of a preliminary injunction.). Our sister court has extended that conclusion,
pointing out that [f]ederal courts at all levels have recognized that violation of constitutional rights
constitutes irreparable harm as a matter of law. De Leon v. Perry, 975 F. Supp. 2d 632, 663
(W.D. Tex. 2014), aff'd sub nom. De Leon v. Abbott, 791 F.3d 619 (5th Cir. 2015). See also 11A
CHARLES ALAN W RIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE
2948.1 (2d ed. 1995) (When an alleged deprivation of a constitutional right is involved, most
courts hold that no further showing of irreparable injury is necessary.). Noting that [a]n injury is
irreparable if money damages cannot compensate for the harm, our sister court found allegations
of infringement on due process and equal protection rights resulting from enforcement of a state
law prohibiting their marriage constituted an irreparable injury. De Leon, 975 F. Supp. 2d at 663.
The Court thus concludes Plaintiffs need only show a deprivation of a constitutional right to
establish the requisite irreparable injury.

Plaintiffs did not address LUPEs interest in, or suggest it faced irreparable injury without, the grant of a
preliminary injunction either in their briefs or during the hearing. Accordingly, the Court will not address LUPE any
further herein.

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Plaintiffs argue the conduct of Defendants has interfered with the fundamental rights of
citizenship, to travel and to familial integrity, as well as education and public benefits. By way of
affidavit testimony, Plaintiffs detail a list of harms facing families unable to obtain birth certificates
for their Texas born child. Specifically, they present evidence that because Plaintiff parents
possessed only consular identification cards they were unable to obtain birth certificates for Texas
born children and: (1) Plaintiff Cedillo Nieto was unable to bring her son back into the United
States after traveling to Mexico (Plf. App. Aff. of Cedillo Nieto); (2) are unable to baptize their
children (Id. Aff. of Garcia; Aff. of Gomez Ibarra); (3) have difficulties retaining Medicaid assistance
for children facing serious health issues (Id. Aff. of Garcia; Aff. of Ibarra; Aff. of Perales Serna);
(4) enrollment in school or day care may be terminated or refused (Id. Aff. of Garcia; Aff. of Gomez
Ibarra; Aff. of Perez; Aff. of Teran Uriegas; Aff. of Garza); (5) cannot complete an application for
or retain Section 8 housing assistance (Id. Aff. of Garcia; Aff. of Vega); (6) face difficulties at
immigration checkpoints when officers threaten to detain a child without proof of citizenship or
relation to the Plaintiff parent (Id. Aff. of Gomez Ibarra; Aff. of Perales Serna); and (7) face
difficulties obtaining and retaining Social Security Disability benefits for their children (Id. Aff. of
Garza).
Defendants respond by contending that the lack of a birth certificate does not prevent a
Texas born child from attending school or qualifying for Medicaid. They point to a provision of the
governing statute which permits the state registrar to issue to a parent a certificate necessary for
admission to school which is limited to a statement of the childs birth. TEX. HEALTH & SAFETY
CODE ANN. 191.0046(a). According to Defendants, identification is not required in order to
obtain this certificate. (Def. Resp. Decl. of Farinelli 8). Further, the Texas Health and Human
Services Commission (HHSC), which administers the Medicaid program, has a gateway to the
Vital Statistics Unit and can verify birth records. Thus, parents need not have a birth certificate
7

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for a child born in Texas to obtain Medicaid. (Id. 8; Decl. of Muth 8). Defendants also suggest
Plaintiffs have not satisfied their burden to show irreparable injury because they have not
presented affidavit testimony from each named Plaintiff parent which contains sufficient facts to
establish the need for a birth certificate to obtain the benefits and privileges of citizenship.5
The Court finds Defendants response inadequate for a number of reasons.

First,

Defendants have addressed only two of the seven harms Plaintiffs assert they face as a result of
the inability to obtain birth certificates for Texas born children. Second, Defendants themselves
have presented supplemental evidence which establishes that, for a student under eleven years
of age being enrolled in a school for the first time, the person enrolling a child born in the United
States must provided a certified copy of the childs birth certificate within thirty days. (Def. Supp.
Aff of Marx Ex. 5-1 at 49). If the person is unable to produce a certified copy of the birth
certificate, other identification may be acceptable, but must be accompanied by a signed note
explaining why the person was unable to produce a certified copy of the birth certificate. (Id.).
In the case of an undocumented person, this signed note would admit their status and thus
expose them to potential criminal liability and removal from the United States.6
Third, Plaintiffs, in their reply, present evidence from two witnesses who called a number
of Medicaid offices in Texas and were told by many that they had no ability to verify birth absent
a birth certificate. (Plf. Reply Aff. of Anway; Aff. of Dabaghi). Plaintiffs also present affidavit
testimony that Plaintiff parents have been specifically told by personnel at Medicaid offices that

Defendants also suggest, because Plaintiff Cedillo Nieto admits she was able to obtain a birth certificate for
her son, she has failed to establish irreparable injury. But they do not contest it took some months to obtain the birth
certificate, and that her son was in dangerous circumstances in Mexico during that period. (Plf. Reply Aff. of Cedillo
Nieto). As noted above, even a brief deprivation of a constitutional right, such as the right of citizenship and to travel,
is sufficient to establish injury.
6
An August 11, 2015 informational letter sent by the Texas Education Agency to school administrators
specifically directs that, if the person enrolling a child does not provide the required information, the school shall notify
the appropriate law enforcement agency before the 31st day after the person fails to comply. (Def. Supp. Aff. of Marx
Ex. 6-2 at 19).

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a birth certificate must be presented to renew Medicaid.7 (Id. Aff. of Barragan Gutierrez).
Fourth, Plaintiffs present additional affidavit testimony detailing personal experiences of
the difficulties faced in obtaining birth certificates and the attendant benefits thereof. Specifically,
Plaintiffs provide evidence that one or more of them has been informed by workers at the pertinent
offices that: (1) a birth certificate is required to obtain WIC benefits (Id. Aff. of Barragan Gutierrez);
(2) a birth certificate is required to obtain Section 8 housing benefits (Id. Aff. of Garza; Aff. of
Garcia Castro); (3) the Catholic Church requires a birth certificate for baptism (Id. Aff. of Garcia
Castro; Aff. of Gomez Ibarra); (4) a birth certificate is a requirement to obtain Medicaid (Id. Aff. of
Garcia Castro); (5) a birth certificate is required to attend public school (Id. Aff. of Garcia Castro);8
and (6) a birth certificate is required to enroll in Head Start (Id. Aff. of Gomez Ibarra).
Finally, it simply begs credulity for Defendants to argue a birth certificate is not a vitally
important document. The rights and privileges of citizenship inure to those who are citizens. The
lack of a birth certificate, or other documentation establishing citizenship, presents a clear bar to
access to those rights.
Based on the evidence presented by Plaintiffs, the Court concludes Plaintiffs have
established, at a minimum, that deprivation of a birth certificate to the Plaintiff children results in
deprivations of the rights and benefits which inure to them as citizens, as well as deprivations of
their right to free exercise of religion by way of baptism, and their right to travel.
The question of whether the Plaintiff parents have met the requisite burden at this stage
of the litigation is a closer one. The sole argument Plaintiffs offer in their pleadings is that the

When a child is born, the hospital will report the birth to DSHS, issue a Verification of Birth letter to the
parent, and make arrangements for a Social Security card and the first year of Medicaid coverage. (Plf. Reply Aff. of
Gonzalez).
8

Plaintiffs also present affidavit testimony that in response to phone calls to five individual public schools,
as well as one school district, the caller was consistently told a birth certificate was required for attendance. (Plf. Reply
Aff. of Martinez).

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Plaintiff parents are deprived of their fundamental right to raise and protect their children absent
the issuance of a birth certificate.
The right to family integrity is clearly protected by the Constitution. See Moore v. City of E.
Cleveland, 431 U.S. 494, 503-05 (1977) (discussing source and extent of constitutional protection
of the sanctity of the family); Kipps v. Caillier, 205 F.3d 203, 206 (5th Cir. 2000) (parent-child
relationship lies at the heart of protected familial associations); Morris v. Dearborne, 181 F.3d
657, 671 (5th Cir. 1999) (The constitutional right to family integrity was well established in 1992).
This right is held by both the child and the parents. Wooley v. City of Baton Rouge, 211 F.3d 913,
923 (5th Cir. 2000).

However, as Defendants point out, the Fifth Circuit has repeatedly

characterized the right as ill-defined. See, e.g., Doop v. Chapman, 211 F. App'x 246, 248 (5th Cir.
2006) (noting court has not clearly defined the nebulous right to family integrity in this context);
Rolen v. City of Brownfield, 182 F. App'x 362, 364 (5th Cir. 2006) (referring to due process right
of family integrity as nebulous and undefined); Peters v. Lowrey, 114 F.3d 1184 (5th Cir. 1997)
(although right to family integrity has been recognized, contours of the right are nebulous and not
clearly established); Kiser v. Garrett, 67 F.3d 1166, 1172 (5th Cir. 1995) (nebulous, ill-defined
right to family integrity); Doe v. Louisiana, 2 F.3d 1412, 1417 (5th Cir. 1993) (prior cases have
noted nebulous nature of right of family integrity); Hodorowski v. Ray, 844 F.2d 1210, 1217 (5th
Cir. 1988) (referring to nebulous right of family integrity).
Although the right to family integrity may be nebulous, the Court concludes its parameters
extend to issue of food, shelter, medical care and religious participation by a parent on behalf of
his or her child. In this case, Plaintiffs have presented evidence that the lack of a birth certificate
for a Texas-born child presents grave difficulties to a parent seeking to obtain public assistance
in providing that child food, shelter and medical care. In addition, Plaintiffs have presented
evidence that the lack of a birth certificate makes it impossible for at least some parents to have
10

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a child baptized.
The Court thus finds Plaintiffs have sufficiently shown a substantial threat of irreparable
injury to the Plaintiff children and parents to meet the first element necessary to obtain a
preliminary injunction.
B. Likelihood of Success
Plaintiffs contend they are likely to succeed on the merits of their equal protection and due
process claims, as well as their claim based on federal preemption.9 To show a substantial
likelihood of success, the plaintiff must present a prima facie case, but need not prove that he is
entitled to summary judgment. Daniels Health Sciences, L.L.C. v. Vascular Health Sciences,
L.L.C., 710 F.3d 579, 582 (5th Cir. 2013). See also Janvey v. Alguire, 647 F.3d 585, 596 (5th Cir.
2011) (same, citing CHARLES ALAN W RIGHT, ARTHUR R. MILLER, MARY KAY KANE, 11A FEDERAL
PRACTICE & PROCEDURE 2948.3 (2d ed. 1995) (All courts agree that plaintiff must present a
prima facie case but need not show that he is certain to win.)).
1. Equal Protection and Due Process
a. Guiding Principles
Under the Due Process Clause of the Fourteenth Amendment no State shall deprive any
person of life, liberty, or property, without due process of law. U.S. CONST. amend. XIV. The
fundamental liberties protected by this Clause include both the rights enumerated in the Bill of
Rights, as well as personal choices central to individual dignity and autonomy, including intimate
choices that define personal identity and beliefs. Obergefell v. Hodges, 135 S. Ct. 2584, 2597
(2015). See also Simi Inv. Co. v. Harris Cnty., 236 F.3d 240, 249 (5th Cir. 2000) (violation of

9
As set forth above, Plaintiffs also assert a claim for violation of the Texas Administrative Procedures Act
in their complaint. They have not, however, addressed that claim in moving for a preliminary injunction. The Court thus
declines to address that claim at this stage of the proceedings.

11

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substantive due process occurs when the government works a deprivation of a constitutionally
protected interest). The Equal Protection Clause of the Fourteenth Amendment commands that
no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S.
CONST. amend. XIV. The basis of an equal protection claim is, thus, the requirement that all
persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432, 439 (1989); Plyler v. Doe, 457 U.S. 202, 216 (1982); Piotrowski v. City of Houston,
237 F.3d 567, 578 n.15 (5th Cir. 2001).
In analyzing an equal protection challenge strict scrutiny is appropriate only where a
government classification implicates a suspect class or a fundamental right. Rublee v. Fleming,
160 F.3d 213, 217 (5th Cir. 1998). See City of Cleburne, 473 U.S. at 440 (when a statute
classifies by race, alienage, or national origin law is subjected to strict scrutiny). Otherwise, equal
protection analysis requires only that the classification be rationally related to a legitimate state
interest. Cornerstone Christian Sch. v. Univ. Interscholastic League, 563 F.3d 127, 139 (5th Cir.
2009).

Similarly, in a due process challenge, I[if] the right is so deeply rootedif it is

fundamentalwe subject it to more exacting standards of review. If it is not, we review only for
a rational basis. Cantu-Delgadillo v. Holder, 584 F.3d 682, 687 (5th Cir. 2009) (citing Washington
v. Glucksberg, 521 U.S. 702, 720 (1997)).
b. Appropriate Level of Scrutiny
Although Defendants maintain there is no fundamental right at issue, the Court has
concluded the Plaintiffs have presented evidence showing that a lack of a birth certificate affects
the fundamental rights of the citizen Plaintiff children and the fundamental right of family integrity
for both the Plaintiff children and parents. Insofar as a birth certificate is the primary means of
documenting citizenship, it follows that a citizens right to obtain it is as fundamental as the rights
and privileges that flow from the status it documents. Accordingly, a heightened level of scrutiny
12

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is appropriate in analyzing the constitutional claims presented in this case. See Regan v. Taxation
with Representation of Wash., 461 U.S. 540, 547 (1983) (Statutes are subjected to a higher level
of scrutiny if they interfere with the exercise of a fundamental right, such as freedom of
speech....); Merced v. Kasson, 577 F.3d 578, 587 n.12 (5th Cir. 2009) (noting even neutral laws
of general applicability must still pass strict scrutiny if more than one constitutional right is
implicated, citing Wisconsin v. Yoder, 406 U.S. 205 (1972) (combining the right to free exercise
of religion with parents' fundamental right to raise their children as they choose)).10
Under strict scrutiny, the challenged law must be narrowly tailored to be the least restrictive
means of achieving a compelling government interest. Citizens United v. Fed. Election Comm'n,
558 U.S. 310, 340 (2010). A law is narrowly tailored if it actually advances the state's interest ...,
does not sweep too broadly ..., does not leave significant influences bearing on the interest
unregulated (is not underinclusive), and could be replaced by no other regulation that could
advance the interest as well with less infringement of [a constitutional right] (is the least-restrictive
alternative). Dep't of Tex., Veterans of Foreign Wars of U.S. v. Tex. Lottery Comm'n, 760 F.3d
427, 440 (5th Cir. 2014) (quoting Republican Party of Minn. v. White, 416 F.3d 738, 751 (8th Cir.
2005) (en banc)). A policy is underinclusive if it is too narrow in scope to reasonably fulfill the
government's purported interest.

See id.

Such a policy fails strict scrutiny because its

underinclusiveness raises the possibility that the government's stated interest is pretextual and
that the policy is actually intended to serve another end. See Brown v. Entm't Merchants Ass'n,
131 S. Ct. 2729, 2740 (2011) ("Underinclusiveness raises serious doubts about whether the
government is in fact pursuing the interest it invokes"); Tex. Lottery Comm'n, 760 F.3d at 440
("Such obvious underinclusiveness undermines any argument that Texas is truly interested in

10

The Court notes the Fifth Circuit has applied a heightened level of scrutiny to challenges to statutes
imposing additional burdens on citizens in immigration related matters. See Nguyen v. INS, 208 F.3d 528, 53435 (5th
Cir. 2000), aff'd, 533 U.S. 53 (2001).

13

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regulating gambling.").
c. Application of Strict Scrutiny
Plaintiffs first suggest Defendants have not proffered any state interest which rises to the
level of compelling. Although Defendants disagree that strict scrutiny applies to this case, they
have pointed out that a certified copy of a birth record can be used to obtain numerous
identification documents, such as a passport or driver's license, as well as to commit identity theft.
(Def. Resp. Decl. of Farinelli 3). Accordingly, in Texas, birth certificates are not treated as open
records. TEX. GOV'T CODE ANN. 552.115 (excepting birth certificates from requirements of Texas
Open Records Act). In further recognition of the importance of protection of a birth certificate, it
is a felony offense in Texas to fraudulently use or possess identifying information of another
person, specifically including the identifying information of a child younger than 18 years of age.
TEX. PENAL CODE ANN. 32.51(b)(3).11 Accordingly, the Court concludes Plaintiffs have not shown
Texas lacks a compelling interest in protecting the issuance of birth certificates. See Voting for
Am., Inc. v. Steen, 732 F.3d 382, 386 (5th Cir. 2013) (party seeking injunction carries the burden
of persuasion on all four requirements).
The remaining issue is whether Section 181 is narrowly tailored to be the least restrictive
means of vindicating Plaintiffs constitutional rights. Of particular significance in this case is that
the determination of likelihood of success is not solely a question of law, but rather a mixed
question of law and fact. Hoover v. Morales, 164 F.3d 221, 224 (5th Cir. 1998). The threshold
factual question is whether Plaintiffs have established Section 181 prevents the issuance of a birth
certificate for the Plaintiff children. Consequently, to establish a substantial likelihood of success
on the merits, [Plaintiffs] must demonstrate that [Section 181], as applied against [Plaintiffs] in this

11

The Court notes any argument Plaintiffs assert which downplays Texas interest in protecting possession
of a birth certificate is strongly rebutted by their testimony regarding the importance of that document.

14

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case on these facts, likely violates the Constitution. Jackson Women's Health Org. v. Currier, 760
F.3d 448, 453 (5th Cir. 2014).
As a preliminary matter, the Court notes the record in this case has been an evolving one.
At the outset, Plaintiffs presented a broad sweeping narrative which suggested an entire class of
persons was being deprived, as a matter of law, from obtaining a birth certificate. As the record
developed, the evidence became something of a moving target, and unfortunately less clear.
Specifically, it is particularly troubling that the affidavits of the Plaintiff parents lack precision in
detailing which forms of identification they, or other qualified applicants, actually possess or can
reasonably obtain. Nonetheless, following a detailed and thorough analysis of Plaintiffs evidence,
the Court finds the affidavit testimony establishes there are two sets of Plaintiff parents.12
The first set consists of those Plaintiffs whose testimony establishes they either personally
have, or another qualified applicant has, sufficient identification documents for a birth certificate
to issue to the related Plaintiff child. For example, Plaintiffs present testimony from Quenia Perez
in which she states her childs paternal grandmother possesses a Mexican passport without visa,
and a valid Mexican electoral card, and further that she has been advised by the birth certificate
office that those documents satisfy Section 181. (Plf. Addl Aff. Aff. of Perez). Nancy Garcia
Castro states her husband has a current Mexican drivers license and expired Mexican electoral
card, which would satisfy Section 181. (Plf. Reply Aff. of Garcia Castro).
As to this first set of Plaintiff parents, while the Plaintiff parents indicate they have not been
able to obtain birth certificates,13 Defendants maintain the evidence presented does not point to

12

The evidence, as well as statements during the hearing, establish that there is a third, unique, Plaintiff
parent who has been able to obtain a birth certificate for her Texas-born child since the filing of this lawsuit. The claims
raised on behalf of her and her child thus need not be addressed in ruling on Plaintiffs application for preliminary
injunction.
13

Some Plaintiff parents affidavit testimony indicates they have been denied birth certificates for their
respective children even though the documents presented satisfy Section 181. If true, this conduct could support a
cause of action against individual DSHS employees. It does not, however, suffice to support their attack on Section

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any inadequacy in Section 181 as the cause.14 The language of Section 181 clearly supports that
position, and Plaintiffs do not argue otherwise. Accordingly, as to this first set of Plaintiff parents,
there is not a sufficient showing demonstrating that Section 181, as applied to them in this case
on these facts, likely violates the Constitution.
The other set of Plaintiff parents have submitted affidavits in which each states she has
attempted to obtain a birth certificate by presenting documents which do not satisfy the
requirements of Section 181 and was turned down.

These parents state they presented

documents, including consular identification or a foreign passport without a visa, which would
have, or actually had, previously sufficed to establish identity sufficient to obtain a birth certificate
for their child.15
As set forth above, under Section 181 a foreign passport may be used as a secondary
form of identification only if it includes a visa, or is issued by a Visa Waiver country. 25 TEX.
ADMIN. CODE 181.28(i)(11)(D)(ix-x). Section 181 accepts as a form of secondary identification
any "Foreign Identification with identifiable photo of applicant.

Id. 181.28(i)(11)(D)(xv).

However, the Vital Statistics Unit's Local Registrar Handbook specifically states DSHS does not
accept the Matricula Consular as an independent form of valid identification. (Def. Resp. Supp.

181. As noted above, counsel for Defendants acknowledged during the hearing on this application that the filing of this
lawsuit directly led to the issuance of a birth certificate for one Plaintiff child. The Court urges counsel for both parties
to review the testimony and documents presented with the application for preliminary injunction and responsive
pleadings to determine whether other Plaintiffs are eligible for issuance of a birth certificate for their child.
14

The Court additionally notes Plaintiffs have provided testimony which suggests a troubling practice by
certain employees at local registrar offices. Specifically, Plaintiffs have presented testimony that: (1) the registrars
office told one plaintiff she could get in trouble requesting a birth certificate for a United States citizen and threatened
to call immigration (Plf. Reply Aff. of Barragan Gutierrez); and (2) that, during the first week of September 2015, a
plaintiff went to the HHSC office in Austin to obtain her daughters birth certificate but when she informed an employee
she was not a United States citizen or resident, was told by the employee that birth certificates for children of
immigrants would not be processed as the children are considered immigrants, and was removed from the waiting line.
(Id. Aff. of Rodriguez Bonilla). These allegations, however, also do not support a challenge to Section 181, but rather
possibly to the practices of specific employees of DSHS.
15

A number of the Plaintiff parents have other, older, Texas-born children for whom they were able to obtain
birth certificates.

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Ex. B at 43). Based on the clear language of Section 181 and the Local Registrar Handbook, the
Court concludes the second set of Plaintiff parents have sufficiently shown that application of
Section 181 to them has actually resulted in a deprivation of a fundamental right. The Court,
therefore, turns to the second portion of the strict scrutiny analysis. That is, whether the law is
sufficiently narrowly tailored to be the least restrictive means of achieving a compelling
government interest. Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 340 (2010).
Defendants contend the current requirements were adopted due to concerns regarding
identity theft and the reliability of identification documents. While this explanation is facially
reasonable, it is worth noting that counsel for Defendants admitted at the hearing on the
preliminary injunction that no evidence, statistical or otherwise, was presented by Defendants
establishing that those concerns were not being adequately addressed prior to the implementation
of Section 181. Nonetheless, Defendants have presented evidence which they maintain shows
DSHS was concerned with, and attempted to address, a real potential for fraud in implementing
Section 181.
Specifically, in 2008 DSHS was contacted by the Consul General of Mexico who inquired
whether consular identification, specifically the Mexican matricula, was no longer acceptable.
(Def. Resp. Decl. of Connelly 3). According to Defendants, research undertaken by DSHS
revealed that matriculas are issued by individual Mexican Consulates in the United States, and
that the Consulates do not maintain a centralized database that keeps track of persons who have
been issued a matricula and which consular office issued the person a matricula. (Id. Decl. of
Harris 3). Additionally, the research revealed that Mexican Consulates did not verify the
authenticity of the documents presented by persons seeking a matricula, and that registrars in only
four of twenty states responding to DSHS inquiry accepted the matricula as stand-alone
identification. (Id.). Further, when conducting its research, DSHS learned of, and apparently

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relied heavily on, extensive research which had already been performed by the United States
Government. (Def. Resp. Decl. of Connelly 4). Specifically noted is testimony provided to
Congress by the FBI that neither the FBI nor the Department of Justice recognized the matricula
as a valid form of identification, nor did United States Immigration and Custom Enforcement. (Id.).
DSHS informed the Consul General by letter dated June 20, 2008 that the matricula would no
longer be accepted as an independent verification of identity. (Id. 8).
Further, according to Defendants, a foreign passport, even if authentic, does not
necessarily indicate that the foreign government verified the authenticity of the source documents
used to obtain the passport. (Id. Decl. of Farinelli 6). In addition, if a copy of a passport is
mailed in, rather than directly presented at a DSHS office, there is no opportunity to examine the
passport for the presence of certain security features. (Id.). According to Defendants, these
concerns are mitigated through the visa process, because if a visa was issued, the State
Department conducted inquiries that would confirm the identity of the passport holder. And, in the
case of a visa waiver, the State Department has determined that there is minimal risk from
accepting the passport without any further investigation into the holder of the passport. (Id.).
Plaintiffs, in turn, argue Defendants research and conclusions are outdated. In support
of this assertion, they provided the affidavit of the Consul General of the United Mexican States
(Mexico) located in Austin, Texas.

(Plf. Reply Aff. of Gonzalez Gutierrez).

The affidavit

testimony establishes that, in 2006, Mexico improved the security features of the consular
identification card by beginning operation of a centralized database including biometrics, decoded
information of the bearer using bi-dimensional code bars and other methods used according to
international standards. (Id. 14). Further, in November 2014, Mexican consulates across the
United States started issuing a new version of the consular identification card, which has
additional security measures including biometrics of the applicant with embedded identity data,
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upgraded design features of the card itself, and a photograph that is clearer than on past versions.
(Id. 16, 21-27).
In addition, Plaintiffs cite the affidavit of Austin Police Chief Art Acevedo (Acevedo).
Acevedo states he considers both the current, newest Mexican matricula and its 2012 predecessor
to be a completely safe and secure identity document which his department accepts routinely
and considers to be as safe and secure as a Texas driver's license. (Plf. Reply Decl. of Acevedo
7-8). Acevedo additionally notes he is familiar with practices of other police departments in the
area, and they also use and accept the matricula as a safe and secure form of identity. (Id. 11).
Plaintiffs evidence concerning recent upgrades to the Mexican matricula does indicate
Defendants concern regarding the ability to fabricate or readily tamper with the document may
well be outdated.

However, the evidence does not directly address Defendants concern

regarding the reliability or authenticity of the document. The Mexican consul general broadly
testifies that, to obtain a consular identification card, a person must go to a Mexican Consulate
and show original documentation establishing proof of Mexican nationality, official proof of identity,
from either Mexico or the United States, and proof of address within the consular district. (Plf.
Reply Aff. of Gonzalez Gutierrez 30). But Plaintiffs have not explained what documents are
necessary to meet those requirements. Nor have they directly addressed whether a person can
present those documents at different consulates and obtain multiple Mexican matricula. Nor,
significantly, have Plaintiffs presented any evidence rebutting or otherwise casting doubt on the
legitimacy of Defendants concern regarding authenticity and reliability of passports lacking visas.
Although Plaintiffs do not directly address the issue, the Court notes Section 181 permits
acceptance of other forms of "Foreign Identification with an identifiable photo other than the
matricula. Similarly, the policy allows other forms of secondary identification, such as a current
student identification or a medical insurance card. The singling out of the Mexican matricula may

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suggest it is being subjected to a different, and more exacting, standard than other forms of
identification. Such treatment could lead to the conclusion that Section 181, and the Local
Registrar Handbook, are implementing an underinclusive policy which would violate strict scrutiny.
Unfortunately, Plaintiffs have failed to present any evidence which would support such a
conclusion. While a review of the secondary identification documents listed in Section 181 might
cause the reviewer to question the relative reliability and ease of obtaining the documents as
contrasted with the matricula and foreign passport without a visa, Plaintiffs have presented no
evidence which would substantiate those questions. Wholly absent from the record is evidence
which would confirm such documents are less reliable than the matricula and passport, or that the
documents can be obtained with only minimal, or at least a lesser showing of identification, than
the excluded matricula and foreign passport without visa.
In contrast, Defendants have presented evidence that a workgroup was commissioned by
the 2011 Texas Legislature to develop recommendations to improve the security and effectiveness
of the state's birth registration system. The workgroup consisted of staff from the Governor's
office, the U.S. Department of Homeland Security, the U.S. Department of State, local registrars,
and other local, state, and federal agencies. (Def. Resp. Decl. of Farinelli 7). The workgroup
recommended that DSHS "consider amending administrative rule [25 TAC Section 181.1(13)] to
strengthen the controls related to the identification required to issue a birth certificate." (Id.).
Specifically, the workgroup recommended reducing the number of forms of acceptable
identification to reduce the states exposure to the presentation of fraudulent documents. The
current regulation was adopted in response to the workgroups recommendations. (Id.).
Defendants suggest that they are stuck between a rock and hard place: they have crafted
what they believe to be an inclusive policy so that birth certificates are reasonably available to the
appropriate parties, but Plaintiffs are now using the policy's generally inclusive character against

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them to challenge its restrictive components. A regulatory scheme will not satisfy strict scrutiny
if there is a less restrictive means that would be at least as effective in achieving the legitimate
purpose that is being served. Service Emps. Int'l Union, Local 5 v. City of Houston, 595 F.3d 588,
596 (5th Cir. 2010) (quoting Reno v. ACLU, 521 U.S. 844, 874 (1997)) (internal quotation marks
omitted). At the same time, "there simply has to be some room for judgment about how wide to
cast the net." Republican Party, 416 F.3d at 783.
While the Court is very troubled at the prospect of Texas-born children, and their parents,
being denied issuance of a birth certificate, as the evidence presented by Plaintiffs themselves
establishes, a birth certificate is a vital and important document. As such, Texas has a clear
interest in protecting access to that document. Defendants have presented substantial evidence
which suggests they have attempted to vindicate both interests. Specifically, they have provided
evidence which substantiates other governmental agencies, including the FBI, the Department of
Justice and United States Immigration and Custom Enforcement, have expressed concerns
regarding the reliability of the matricula. Although Plaintiffs maintain that at least some of that
evidence is outdated or otherwise questionable, the Court does not presently have a record which
permits resolution of that challenge. Moreover, as noted above, Plaintiffs have not presented any
evidence which suggests Defendants have improperly focused on and excluded the matricula and
foreign passport without visa as forms of secondary identification.
The Court must always keep in mind that [t]he purpose of a preliminary injunction is to
preserve the status quo and thus prevent irreparable harm until the respective rights of the parties
can be ascertained during a trial on the merits. Exhibitors Poster Exch., Inc. v. Nat'l Screen Serv.
Corp., 441 F.2d 560, 561 (5th Cir. 1971). For this reason, mandatory preliminary relief, such as
that sought here, which goes well beyond simply maintaining the status quo pendente lite, is
particularly disfavored, and should not be issued unless the facts and law clearly favor the moving
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party. Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976) (emphasis added). And, at this
preliminary stage, it is the Plaintiffs who bear the heavy burden of persuading the district court
that all four elements are satisfied and if they do not succeed, a preliminary injunction may not
issue. Enterprise Int'l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th
Cir. 1985).
In sum, the arguments of Plaintiffs, while heartfelt, compelling and persuasive, are not
enough without substantiating evidence to carry the burden necessary to grant relief to Plaintiffs
at this early stage of the proceedings. This is an important and difficult case which merits full
factual development and a thorough presentation of evidence, which are both lacking at this
stage. The Court thus concludes the state of the record at this preliminary stage falls short of
sufficiently establishing that Plaintiffs are substantially likely to succeed on the merits of their
constitutional claims.
2. Preemption
Plaintiffs have also alleged that the conduct of Defendants implicates a variety of
preemption doctrines in violation of the Supremacy Clause. The focus of their argument is that
immigration law is a matter wholly reserved to the federal government. More specifically, Plaintiffs
allege that the Immigration and Nationality Act, 8 U.S.C. 1101, et seq., along with
developments in federal immigration regulation, preempt Defendants' restrictions on access to the
Plaintiff children's birth certificates.
Plaintiffs raise three arguments in support of their claim. First, Plaintiffs argue that, by
effectively curtailing the Plaintiff children's access to birth certificates, Defendants deny their rights,
privileges, and immunities as citizens in conflict with the federal laws and the Constitution.
Second, Plaintiffs contend that, by curtailing access to birth certificates, Defendants render life in
the United States so intolerable that Plaintiffs are pushed to "self deport." According to Plaintiffs,
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such conduct intrudes upon the federal government's exclusive power to determine who may stay
in the United States and who must leave, and conflicts with Congressional objectives. Finally,
Plaintiffs argue that Defendants' restrictions on access to birth certificates are a state sanction on
undocumented immigrants. They maintain such punishment is impermissible because the federal
government, and not the states, determines the "rights and sanctions" available to or imposed
upon immigrants.
It is a "fundamental principle of the Constitution [] that Congress has the power to preempt
state law." Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372 (2000); see also U.S. CONST.
art. VI, cl. 2 (stating federal law "shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding"). Preemption takes different forms. In addition to expressly preempting state
and local law, Congress can preempt states from passing laws in regulatory "field[s]" that it
determines "must be regulated by its exclusive governance." Arizona v. United States, 133 S. Ct.
2492, 2501 (2012). The determination is reflected by "a framework of regulation 'so pervasive .
. . that Congress left no room for the States to supplement it' or where there is a 'federal interest
. . . so dominant that the federal system will be assumed to preclude enforcement of state laws
on the same subject.'" Id. (alterations in original) (quoting Rice v. Santa Fe Elevator Corp., 331
U.S. 218, 230 (1947)). Congress may also preempt state laws that conflict with - or pose an
obstacle to the purposes of - federal law. Id. "What is a sufficient obstacle is a matter of
judgment, to be informed by examining the federal statute as a whole and identifying its purpose
and intended effects." Id. (quoting Crosby, 530 U.S. at 372).
The federal preemption power is particularly strong with regard to immigration regulation.
"The Government of the United States has broad, undoubted power over the subject of
immigration and the status of aliens." Id. at 2498. A state may regulate noncitizens without
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running afoul of federal supremacy. See De Canas v. Bica, 424 U.S. 351, 355 (1976); LeClerc
v. Webb, 419 F. 3d 405, 423 (5th Cir. 2005). However, "[a]s the Supreme Court has emphasized
- and indeed, as a constitutional imperative - a country's treatment of noncitizens within its borders
can gravely affect foreign relations." Villas at Parkside Partners v. City of Farmers Branch, 726
F.3d 524, 526 (2013); see also Arizona, 132 S. Ct. at 2498-99 ("It is fundamental that foreign
countries concerned about the status, safety, and security of their nationals in the United States
must be able to confer and communicate on this subject with one national sovereign, not the 50
separate States.").
Defendants challenge Plaintiffs' preemption claims with a call for specificity. That is, they
point out Plaintiffs neither specifically define the "field" preempted, nor identify the Congressional
act or statute with which Defendants' policies conflict. The field, as Defendants characterize it,
is "to whom and upon what showing the State should issue a certified copy of a birth certificate."
(Def. Resp. at 24). Against that definitional backdrop, Plaintiffs' argument has no traction. Such
a determination would seem to fall directly into a state's police power. E.g. Gonzales v. Oregon,
546 U.S. 243,270 (2006) (noting regulation of health and safety is primarily a state's concern).
More broadly still, if the field is "the validity of foreign-issued identification documents," Plaintiffs'
argument crashes against the reality that, as noted above, governmental agencies within the
United States variously recognize (or decline to recognize) different forms of foreign identification.
Plaintiffs, in turn, respond that Defendants consider preemption too narrowly. They point
out, correctly, that Defendants' reliance on the Supreme Court's decision in De Canas and the
Fifth Circuit's decision in Le Clerc glosses over a proliferation of federal immigration regulation and
developments in preemption jurisprudence as it relates to immigration. Both the Fifth Circuit and
the Supreme Court have noted that the line Defendants hope to draw - between regulating who
enters and must leave a country and regulating how immigrants are treated - is a blurry one. See,
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e.g., Arizona, 132 S. Ct., at 2498-99; Villas at Parkside, 726 F. 3d, at 526. Plaintiffs are also
correct that federal preemption does not depend on a specific congressional act precluding
narrowly-defined state conduct. Rather, the Supreme Court has clearly established that a federal
regulatory scheme can be so pervasive that there is no room for state regulation, or that federal
law can preempt state laws contrary to its purposes.
Even in light of these developments, the factual record currently before the Court does not
support a substantial likelihood of success for Plaintiffs' preemption claims. Plaintiffs' arguments
trip on two hurdles. First, Plaintiffs' citations supporting a more expansive view of immigration
preemption are to cases in which state or local laws expressly targeted undocumented immigrants.
In Arizona v. United States, the Supreme Court addressed an Arizona law which, among other
things, authorized officers to arrest a person whom officers had probable cause to believe "ha[d]
committed any public offense that ma[de] that person removable from the United States." 132 S.
Ct. at 2498. In Villas at Parkside, the Fifth Circuit addressed a municipal ordinance prohibiting
undocumented immigrants from renting apartments or single-family residences. 726 F. 3d at 526.
Thus, both the Arizona statute and municipal ordinance expressly determined rights and sanctions
based on a person's immigration status. This Court is not aware of, nor have Plaintiffs pointed to,
any cases in which courts have looked beyond the face of the statute to find federal field or
conflict preemption.
Second, even if Plaintiffs had cited to cases permitting this Court to look beyond the face
of a statute in determining field or conflict preemption, they have not shown such an examination
would succeed.

Simply put, Plaintiffs have not presented evidence which establishes an

impermissible purpose by Defendants in promulgating section 191 of the Texas Health and Safety
Code and Section 181.

In fact, the evidence establishes Defendants have a compelling

governmental interest in regulating with care the process of accessing birth certificates. Finally,
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Plaintiffs have not shown an effect on undocumented immigrants as a class akin to the effect of
the statute at issue in Arizona v. United States or the ordinance at issue in Villas at Parkside.
The Court thus concludes Plaintiffs have not presented evidence and argument which
makes a prima facie showing they are likely to succeed on the merits of their preemption claims.
C.

Balancing of Respective Interests

The final two prongs of the preliminary injunction inquiry require weighing of the respective

interests of the parties and the public. Specifically, that the threatened injury out-weighs any
damage that the injunction may cause the opposing party and that the injunction will not disserve
the public interest. In this case, the inquiry essentially collapses because the interests asserted
by Defendants are in the form of protecting the public from injury.
Because the Court has concluded Plaintiffs have failed, at this preliminary stage, to meet
their burden of showing a substantial likelihood of success on the merits, the Court need not
address this issue.
IV. CONCLUSION
In summary, although the Plaintiffs have provided evidence which raises grave concerns
regarding the treatment of citizen children born to immigrant parents, this case requires additional
determinations which can be made only upon development and presentation of an evidentiary
record which thoroughly explores the facts and circumstances of the issues raised in this case.
Accordingly, Plaintiffs Emergency Application for Temporary Injunction (Clerks Dkt. #25)

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is hereby DENIED.
SIGNED on October 16, 2015.

ROBERT L. PITMAN
UNITED STATES DISTRICT JUDGE

27